Buckridge v. J.R. Sandberg Farms LLC, 081716 NEWC, 0056

• Case Date: August 17, 2016
• Court: Nebraska

MICHAEL BUCKRIDGE, Plaintiff, v. J.R. SANDBERG FARMS LLC, Defendant. No. 0056 Doc. 216 Nebraska Workers Compensation August 17, 2016           Plaintiff: Michael W. Meister           Defendant: Melvin C. Hansen Hansen, Lautenbaugh & Buckley           ORDER OF DISMISSAL           Tom Stine, Judge          This cause came on for hearing before the Nebraska Workers' Compensation Court at Gering, Scotts Bluff County, Nebraska, on August 2, 2016, on the Joint Pretrial Conference Memorandum dated July 22, 2016, and on the evidence, Judge Tom Stine, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendant was represented by counsel. Testimony was taken, evidence adduced, cause submitted, and the Court being fully advised in the premises finds as follows:           INTRODUCTION           I.          Plaintiff alleges that on July 7, 2015, he sustained carbon monoxide poisoning arising out of and in the course of his employment with defendant. Defendant denied compensability of plaintiff's claim. For the reasons set forth below, the Court finds plaintiff has failed to sustain his burden of proof to establish that he suffered a work injury arising out of his employment with defendant. For this reason, plaintiff's Petition is dismissed with prejudice.          At trial, plaintiff offered Exhibits 1 through ­­7, and defendant objected to Exhibit 2, page 13, based on hearsay, and objected to Exhibit 7 if it was offered for anything other than proof of notice of the claim by defendant. All objections were overruled and Exhibits 1 through 7 were received into evidence. Defendant did not offer any exhibits at trial. The Court took Judicial Notice of the April 28, 2016, Amended Notice of Trial, Ordering Scheduling Pretrial Conference, and Pretrial Order (E8), and the July 22, 2016, Joint Pretrial Conference Memorandum (E9). Exhibits 8 and 9 were received into evidence.          Pursuant to Exhibit 9, the parties stipulated to the following facts:

1. Plaintiff was employed with JR Sandberg Farms, LLC on July 7, 2015.

2. Plaintiff's rate of pay was $25.00 per hour on July 7, 2015. 3. Plaintiff's average weekly wage is $25.00 x 40 hours per week = $1000.00.

4. Plaintiff's temporary total disability rate is $666.67. 5. The parties agree that venue is proper. 6. Plaintiff claims entitlement to TTD benefits at the rate of $666.67 from one week following the date of the injury through August 3, 2015 a period of three weeks.

         At trial, the parties stipulated to the following additional fact:

7. The parties stipulate that the Joint Pretrial Conference Memorandum (E9) is amended to reflect that plaintiff's average weekly wage for both temporary total disability and permanent partial disability purposes is $517.17.

         The Court reviewed the evidence and finds the stipulations to be fair and reasonable, and that they are not contrary to good morals or public policy. The Court finds the parties are bound by the stipulations voluntarily made, and that there are no exceptional circumstances such to allow the parties relief from the stipulations. The Court will enforce the stipulations, as good cause has not been shown for declining to do so. See, Cervantes v. Omaha Steel Castings Co., 20 Neb.App. 695, 703, 831 N.W.2d 709, 715 (2013) ("Stipulations cannot be contradicted by evidence tending to show the facts to be other than as stipulated."); Kuhlmann v. Platte Valley Irrigation Dist., 166 Neb. 493, 89 N.W.2d 768 (1958). The Court accepts the stipulations of the parties, and incorporates them as findings into its Award herein. The parties are hereby ordered to complete and satisfy the requirements of the stipulations.          In making the findings and conclusions set forth below, I have attempted to distill the salient facts together with the findings and conclusions necessary to resolve the claim. I have not attempted to meticulously summarize the substance of the parties' arguments. The parties submitted voluminous documentary and medical evidence for the Court's consideration. While the Court reviewed the evidence in its entirety, I will not detail each piece of evidence here. The Court reflects that there was conflicting medical evidence presented concerning the nature and extent of plaintiff's injuries, and whether he sustained any injury arising out of and in the course of his employment with defendant. I will set forth specific facts presented at trial as necessary for my analysis. Although only certain records are discussed, all records were reviewed and considered by the Court. Any findings contained herein are the result of consideration of the totality of the evidence in this case. If evidence contrary to the findings of this Court is contained in the record, but not discussed herein, said evidence was rejected or viewed as unpersuasive by the Court.          Resolution of the issues also involved weighing the credibility of the witnesses, and balancing conflicting circumstantial evidence. In assessing the credibility of the witnesses, the Court considered factors such as the respective interests of the witnesses who appeared at trial; the reasonableness of the statements of the witnesses; the general demeanor of the witnesses; the apparent fairness exhibited by the witnesses upon cross-examination; and, the extent to which the testimony of the witnesses...